How the President Applied the Antiquities Act to Create the New Nevada National Monument

“The new Basin and Range National Monument is an area where the Mojave Desert meets the Great Basin and Joshua trees and cactus give way to a sea of sagebrush. It is home to desert bighorn sheep, mule deer, elk and pronghorn antelope. The land provided food and shelter for ancient people and we can still see the history of those people today in the incredible rock art panels. This area is a time capsule of our pioneering western history, from early explorers to mining to the ranching that still exists today. In its center is City, a grand modern art sculpture by world renowned artist Michael Heizer. It is a peaceful place. To me, it feels like home.” -Senator Harry Reid((Elko Daily))

 

“The immensity of man’s power to destroy imposes a responsibility to preserve.” -Congressman John F. Lacey, (R-IA), 1901

****Late December 2016 Update****

28 December: President Obama, applying the very powers discussed below, named Gold Butte a national monument.

See below to learn about the political craftswork done by President Teddy Roosevelt to get this law put into effect.

(You must be wondering why the Congress would ever assent to assign such unchecked power to the executive..)

[End note]

Last week, President Obama, with the authority granted to his office by the Antiquities Act of 1906, declared 704,000 acres of land((approximately the size of Rhode Island)) north of the Las Vegas Valley the Basin and Range National Monument.  Although much of the national press accords the credit((or blame depending what you read)) to Sen. Reid for the creation of the monument; however, only President Obama has the authority to create the monument, and he alone decided if and when to act.

There are not many areas that the President has authority to act unilaterally; creating national monuments is one of the few.  Why was the office of the President granted this authority? And how has the power been applied in the 100 years since the act was signed into law by President Theodore Roosevelt?

Let’s get to it.

The Text and History of the Antiquities Act

The Act for the Preservation of American Antiquities (the Antiquities Act) was a product of the progressive political movement((which consisted of members of both parties)) that began in the 1890s and culminated in 1916 with the creation of the National Park Service. Congress received multiple reports from the American Southwest that significant historical sites were being vandalized and pillaged by folks that want to steal artifacts and natural resources. Rep. John Lacy((of the great state of Iowa)) attempted for more than ten years to pass this legislation to protect these areas, and finally, with the political assistance of the immensely popular President Roosevelt((for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex)), he was finally able to pass the bill in June of 1906.((In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate.)) Section 2 of the bill states:

The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.((16 U.S.C. [United States Code] 431, 1906))(emphasis added) ((Source))

 

Richard Sellers((a historian for the National Park Service)) wrote a great piece on the history of Federal preservation of land.  In it, he provides some context for how and why the Antiquities Act was passed:

In the realm of historic and natural preservation on the nation’s public lands, no law had ever approached the scope of the 1906 Antiquities Act. Much more broadly than with individual national park enabling legislation, the Act made explicit that preservation of historic, archeological, and other scientific sites on lands controlled by the federal government was indeed a federal responsibility. Somewhat analogous to the government’s concern for protecting private interests on private property, the national government accepted its obligation to protect the broad public interest on public lands, in this instance at places containing important remnants of the American past and significant scientific areas. The Act also made it clear that, unlike the forest reserves, the primary value of such special places lay not in their commercial value—in economics, sustainable harvesting, and profits—but in their contribution to education and knowledge for the general public good through research conducted and information disseminated by scientific and educational institutions.((pg 293 Read the article here))

 

The reasoning behind the law is fairly intuitive.  The language used is less so.  How is 700,000 acres of land a monument((Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster))? Does the term “scientific interest” really mean(in application)) any non-commercial interest? More from Mr. Sellers:

In what was from the first its most prominent section, the Act authorized the President to reserve special places located on lands controlled by the federal government: to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” These places were to be designated “national monuments,” a term Hewett((Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time.)) devised, which distinguished them from national parks. While it employed the same proclamation procedure that had been used to establish the Casa Grande Ruin Reservation, it gave the President far greater authority, moving from the one-site authority for Casa Grande to placing no limits on the number of sites presidents could set aside. It thus significantly advanced the preservation authority of the Executive Branch, from not only managing preserved places such as archeological sites, battlefields, and national parks, but also establishing areas to be preserved. The Act’s inclusion of the phrase “scientific interest” opened the way for presidential proclamations that ultimately would set aside a huge array of scenic national monuments having important scientific values. (In 1978, the “scientific interest” wording of the Antiquities Act would help provide statutory authority for President Jimmy Carter to proclaim national monuments in Alaska that added more than 40 million acres to the national park system.) ((Id. pg 294))

 

Very sneaky, indeed. President Roosevelt went on to declare Devils Tower((of Wyoming)) the first national monument under the new law in September of that year.  Like most power granted to the executive branch((see the War Powers, generally)), the reach of the authority expanded as the years passed.

This type unilateral executive power of the Antiquities Act was not unopposed

Our friends in the Congress have not((and are not)) huge fans of the President's unfettered authority((at least when it comes at no political risk to themselves)) to declare lands sole property of the federal government. The first spat between the President and Congress occurred in the 1940s when FDR wanted to expand Grand Teton National Park to include the area surrounding Jackson Hole, Wyoming. Congress refused, “because, in the words of Sen. Henry Ashurst of Arizona, ‘the other States are not going to put over on Wyoming something that her two senators do not want.’”(( Source))

Congress, irritated that the natural wealth and beauty of Wyoming could no longer be sold for profit to the highest bidder((I kid, I am sure this was only about state sovereignty)), passed the first exception to the Antiquities Act which prohibits the creation of any national monuments in Wyoming unless there is express authorization from Congress((16 U.S.C. 431a, by express I mean written, passed legislation)).

President Carter was the next chief executive to take the power granted by the Antiquities Act beyond what Congress found palatable. In the late 1970s, Congress could((or would depending your perspective)) not pass legislation to protect wilderness of Alaska.  President Carter took on the political risk and declared 56 million acres as a national monument using the Antiquities Act. “Like FDR, [President Carter] sidestepped Congress, which up to that point had failed to pass an Alaskan lands protection bill because Alaskans opposed it. Alaskans in the area were incensed, and citizens in Fairbanks even burned President Carter in effigy.”((see the NPR story cited above)).

Note though, that no matter what folks said (or burned), the national monument designation remained.

Some politicians are unhappy with the new Nevada national monument

This discord between the President and the Congress/state governments continues.  Governor Sandoval, Senator Heller, Rep. Heck, and Rep. Hardy all have made public statements condemning the President’s use of the Antiquities Act to create the new Nevada National Monument.  All are displeased with not being more involved in the process, with Rep. Hardy expressing additional concerns about the national monument hurting economic growth in his congressional district.  When asked by KNPR about the Republican objections, Sen. Reid responded “I told them all what I was going to do,” he said. “Maybe they should have said something then.” ((Source)).

As an added externality, could this be Yucca Mountain’s last stand? There is speculation now that it will be all but impossible to build the railroad necessary to connect a potential Yucca Mountain repository.  To quote Robert Halstead, director of the Nevada Agency for Nuclear Projects, "This is the final nail in the coffin.”((Source))

 

Read more about the Basin and Ridge national monument here